>> this week on the journal editorial report, a supreme court stunner as chief justice john roberts joins the liberal wing in upholding the health care mandate. is it a really a tax? the political implications, who benefits come november and the economic fallout. what it means for the health insurance industry and your bottom line. welcome to the journal, editorial report. i'm paul gigot, so much for the radical supreme court.

jeef justice john roberts joining the liberals to uphold the court, on the obamacare law, saying the individual mandate is constitutional, not under the commerce clause, but as a tax. our panel is here with complete coverage of the legal arguments behind the decision and the political implications for november and beyond. i'm joined by walt journal columnist and editor dan eninger, and joe raggo, dorothy rabinowicz, and while they were debating the law, john roberts slipped us a mickey on upheld on the tax revision what, do you make of the argument. >> we can all look at supreme court cases where the court reached the right result, but did so with bad legal reasoning, constitutional reasoning. in a way this case is opposite when we got to the court, chief justice roberts was in a

position to decide this thing unilaterally was an exposition on the commerce clause, central to constitutional arguments and labored statutory interpretation to somehow turn this into a tax. in the bill that passed the senate, there was actually a list of the new taxes that obamacare contained. this wasn't in it. >> the mandate tax wasn't in it. joe, what do you think of the persuasiveness of the tax argument on a constitutional basis? >> well, one problem is that they didn't, as james said, they didn't structure it as a tax. >> they called it a penalty. >> chief justice roberts essentially had to rewrite the law. the larger problem is that whatever concessions they had on the commerce clause, if you can say, you can do the exact same thing with a tax, it's a huge loophole in terms of limiting congress's power. >> they're saying that the commerce clause, under the commerce clause, the mandate is unconstitutional, unless congress decides to assess a penalty on that mandate and call it a tax or even not a tax, the judges can interpret

it as a tax and therefore, it is constitutional, so, that would seem to essentially eviscerate any limits that they have imposed here on the commerce clause. >> i would say so, paul. i mean, there's much about this opinion by john roberts, i mean, as we said in our editorial. usually it's a 5-4 opinion, this is a rewriting the statute as james was suggesting, that mandate tax was not in the statute. he basically has had to rewrite the statute to arrive at this decision and the question is why did he do that? why did he pull out an argument, that basically no one had-- virtually not been made in the oral arguments before the court. >> answer that question, dan, why do you think he did it? >> i think because he was intimidated by the idea that if after citizen's united which the left described as a purely political decision, he went 5-4 with the majority that the left was going to

attack and try to delegitimize the court and the idea here is that justice roberts is protecting the integrity of the court. >> paul: dorothy what about the argument we've read on the the right or left. saying this is an act of genius on the part of the justice roberts. he's playing chess, he put limits on the constitution in the long run ncommerce clause, but in the short run you have to accept obamacare, but that's worth the price. >> yes, i've heard nothing, but, it was the only amusing thing. the most monumento rationalization to what was essentially the justice caved before the threat of exactly what dan just said. >> paul: you think it was the intimidation by the press and the politicians? >> yes, he was covered by the most extraordinary explanation, and what was it they said, he was burnishing the stability, the status of the court which was his so it would look look less like a

political instrument. is it the business of the chief justice worried about burnishing the court's credentials rather than doing justice and a sane and rational and not extraordinary bizarre piece of reasoning? >> james. >> whether this strategy he's adopted is genius or too clever by half only time will tell. let's get together in 20 years and look back. i will say he looked good on the commerce part. the commerce clause is not a general license to regulate an individual from cradle to grave because he was particularly engaged in particular transactions and that's decisively strikes down the argument from the left had taken for granted for decades. >> the price of that is expanding the taxing power. >> i'm not sure how much the taxing power has expanded here, a lot of taxes influenced by individual behavior, even if one says, okay, this goes too far, you can't impose a tax in order to, to infect force people to do some things, they could

have done it through a tax credit. >> you're only supposed to be doing it-- they could have done that, but they couldn't. you're only suppose today apply taxes by half of a message that are constitutional. in this case, he said the mandate is unconstitutional, but we can apply a tax on it and therefore, make it constitutional. that seems to me to be expansion of the taxing power and one that will be very hard to limit in the future. >> yeah, i think future congresses will try to take the basis of his reasoning, to impose taxes for other purposes, say in the area of the environment, it will be litigated and liberal justices will cite justice roberts' interpretation of the taxing power to support those legislations. >> so, there was one other limitation on the congress that was part of this opinion and that's on medicaid. giving an opt out provision for the the states. is this potentially a limitation on federal power going forward? >> well, they said that states-- the federal government can't attach conditions to funds. they can't coerce the states,

they can't commandeer resources. the in practical terms i'm not sure how far this goes. >> paul: james, what do you think of the argument we've heard from some people that john roberts may have changed his mind in making this, making this. first he sided with the conservatives on the court to overturn all or part of it and then under pressure, changed to his 1-4-4 opinion. >> i have no sources close enough to give direct knowledge, but the clue i found in the case was, if you read justice ginsburg's concurrence, it's full of snarky references to the chief justice, written like a dissent and a bitter dissent and the dissent. >> by the conservatives. the dissent by the conservatives, the actual dissent is signed by all of them jointly which is very unusual, so that suggests that

something happened at the end. >> the phrases like the fly by night briefing of the majority opinion, which is a really signaling that justice roberts at the last minute decided to go over and write this really weak opinion whereas the rest of them, james was suggesting on the commerce clause, was very strong, thoughtful material. this was just made up at the last. >> paul: it looks to me, justice roberts was looking for a reason to uphold this bill. >> that's right. >> paul: and he found it. >> that's right, one of the most disturbing things about this aside from the results of this judgment is the fact that you could have intimidated, very good chance, the justice and then you could people to explain and excull pate this thing with the most bizarre sorts of excuse. >> paul: all right, dorothy, thank you all. what now as both sides spin the supreme court decision, obamacare's future is in the hands of american voters. will democrats pay at the polls for this new middle class tax? and can republicans get it overturned?

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>> whatever the politics, today's decision was a victory for people all over this country, whose lives will be more secure because of this law, and the supreme court's decision to uphold it. >> what the court did not do on its last day in session, i will do on my first day, if elected president of the united states. >> paul: reaction on thursday from president barack obama and his rival mitt romney to the supreme court health care decision, okay, dan, how big of a political victory was this for president obama? >> if he had lost, it would have been a big loss, there would have been no other way to spin it, but he won and it's a little like football and politics, super bowl. he won the super bowl of this court decision, on the other hand, i think that this decision has really blown a hole in his electoral strategy. he's running as a protector of the middle class, he has been saying for three years, i will the not raise taxes on the middle class.

>> right. >> this tax raises taxes on the middle class. there is no other way to interpret it. the court is saying it's a tax and the democratic party is running around refusing to describe it as a tax, but you know that mitt romney is going to just go out there and say that the president is indeed imposing this tax on the middle class and he's got a basis for saying so. >> paul: dorothy? >> yes, i was thinking about the number of times we heard yesterday, the phrase, we have awakened a sleeping giant, they have, the sleeping giants the republicans by this thing. >> paul: sleeping, but i'm not so sure a giant. but go ahead. >> the first user of this great analogy was actually the architect of the pearl harbor attack, al ral yamamoto, i fear we've awoke and sleeping giant and filled with a terrible resolve, resolve in the hands of the republican. it struck me treachery, pearl

harbor, all of that. the sentence of treacherous that roberts court have infused in people, filled people, with the sense of a back stabbing against expectations. and that, too, is very much in the air. >> paul: demoralized republicans. >> it's an em bittering factor, it's one of the things, let's remember pearl harbor-- >> i think had it gone the other way, it probably ruined the obama presidency his signal achievement would have overturned and looked ineffectual rather than ideological and suffered, and particularly the left would have been demoralized the achievement that they have he' longed for was undercut so i think there's a good argument to be made. we'll see what happens in the election, that saved-- that john roberts personally saved barack obama's presidency. >> it's a pretty good argument. on the other hand this law has always been terribly unpopular, and we keep hearing, now, during the leadup to it, obama was going to give a speech and turn

things around and when it was passed people were going to turn around when people realized how great it was. it's never happened and i don't think it's going to happen. i think that obamacare is a big burden on the presidency in the reerection effort. >> paul: there's no argument that the tax argument can be used by the president, but mitt romney didn't mention the middle class tax that this mandate tax is in his remarks. >> right. >> and why not? >> and here is the problem, because he instituted the same policy in massachusetts in 2006. so, he is a compromised messenger. the other problem here for the people who want to get rid of the affordable care act is that, say mitt romney wins, he says, i want to get rid of this. if he needs any kind of democratic support including in the senate he's not going to get it. they're going to fight tooth and nail, the fight to protect the biggest legislative liberal achievement since the 1960's, so, this, without some kind of outside force coming

in, it makes their job much, much harder. >> well, but the outside force has to be the the voters. this is the only recourse, if people do not want this law to stand. because the president made clear, it's going to grind on, this implementation and he's not going to give up anything in it, if he doesn't have to. >> i think the decision hands a campaign gift to mitt romney, it's got republicans angry, it's unleashed extraordinary amounts of negative energy, which in campaign politics is really good. you want your base riled up and that has done this. secondly, he raised about 3 million dollars the day of the decision, the republican party raised 200,000 by posting an anti-obamacare thing on its website and i think that romney's contributions could skyrocket as a result of this, if he knows how to exploit the issue. >> and this does eviscerate the argument that he's not raised taxes on the middle class. nearly this mandate tax, it's the only reason it's upheld is because it's defined as a tax. >> well, romney can use

obama's 2009 interview with stephanopoulos when he says isn't this a tax, he says, no, joe, look it up in the dictionary and obama lectures stephanopoulos. the fact that looking it up in the dictionary-- >> and what joe pointed out about massachusetts will he use that tax argument? >> i think he can and he will. he has done a good job of having amnesia about his experience in massachusetts. let's remember one thing, what's here, a huge number of aged people of social security are going to be confronting immense cuts and they go to the polls, they vote. >> and when we come back, a closer look at what dorothy calls fallout, small businesses and your own insurance coverage next. and two pills. afternoon's overhaul starts with more pain. more pil. triple checking hydraulics. the evening brin more pain.

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>> if you're one of the more than 250 million americans who already have health insurance, you will keep your health insurance, this law will only make it more secure and more affordable. >> well, you've heard it before and that was president obama, thursday, saying it again. if you like your health insurance, you can keep it, only now he promises it will be more secure and more affordable. so, joe is everybody going to be able to keep the health insurance they have? >> no, i don't think so. there's huge incentives in this bill as it stands, to drop the insurance and put them into medicaid and government exchanges and that's the problem. the other problem, this mandate as a tax it's pretty weak, only a few hundred dollars. the much better deal is for younger, healthier people to continue to go on and sign up for health insurance when they

get to the hospital. >> paul: they're guaranteed. >> they're guaranteed. paying the mandate tax is the best if you don't need health care. >> that's what happened in massachusetts. >> what's happened in massachusetts and certain federal programs. i think we're going to see destabilization and calls to increase the costs over time. >> paul: insurers are already asking. >> i think that maybe somebody should say something for medicine, doctors and patients. we've been sitting here through the whole thing, profit, insurance, drug companies, big hospital complexes. what does all of this mean for the practice of medicine in the united states? you know, the really geniuses who create new surgical procedures, new medical technologies, which are being taxed under this bill. >> paul: all right, that's the answer to that. >> 2.3%-- what does it mean for the practitioners? >> i think it means they're going to be suppressed. i think that doctors are depressed by this bill and patients understand that their

doctors are going to be herded into a system in which the practice of medicine is ruled upon by the 15 person board that they've created in washington. and i think the republicans should start talking about that and that's what medicine is really, health care is about, doctors and patients. >> paul: because the costs are likely to explode with the subsidies, the bureaucracy and the regulators are going to impose certain costs, and limit the practice of medicine? >> one other point is the effect on the country's finances. the one area in which the supreme court did curtail the law, it said the states don't have to go along with the medicaid expansion. well, the states, bypassing off a lot of the costs to the states. that's one of the ways in which the law was supposed to look at the deficitsment this could have the explosion in federal costs. >> the feds then have to absorb the costs though. >> they can't threaten them. they can't say you-- we're ordering you to expand medicaid.

and so, the problem with this is that it is down and the federal government comes in and we're fine, we'll pay for everything. >> right. >> go to town. and we're going to get a national medicaid program and states are gradually going to lose their role and seeing this for years. >> paul: costs, dorothy, are going up and they're likely to go up further because of the expansion of coverage. >> that's right. and you only have to look at massachusetts where the costs are much higher now and the doctors are fleeing, and very hard to find a physician in massachusetts now and just should be haunting everybody about the bill is that the insurance companies are interposing themselves between the doctor and the patient. now, that's never happened before in the history before. that's the great tariff, that they are there. and we will help you with your health, we will give you advice, we will do prevention with you. what happens to the the physician? that's a very real-- >> now, the obama administration would say, joe,

well, you're wrong, businesses won't drop coverage, but a lot of outside experts are saying, in fact, they'll drop them by the millions. >> exactly. and the problem is, if you're a business, you can raise wages, a little bit and pay a fee, and say, employees, you're better off. >> paul: you go into the exchange and the government will pay for it. we have to take one more break. when we come back, hits and misses of the week. i have to know the weather patterns. i upgraded to the new sprint direct connect. so i can get three times the coverage. [ chirp ] [ manager 2 ] it's like working in a giant sandbox with all these huge toys. and with the fastest push-to-talk... i can keep track of them all. [ chirp ] [ chirp ] [ male announcer ] upgrade to the new "done." with access to the fastest push-to-talk and three times the coverage. now when you buy one kyocera duracore rugged phone, for $49.99, you'll get four free. visit a sprint store, or call 855-878-4biz. [ chirp ] laces? really? slip-on's the way to go.

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>> time now for hits and misses of the week. dorothy, first with you. >> a hit to the memorial who carried out the air war in germany and political offenses against civilians being hit and never notice taken of it. at long last the events thathap

justice. >> paul: thanks. james? >> well, there hasn't been a major, a fatal air crash by a major u.s. airline since november of 2001, that sounds like great news, doesn't it? not to the air safety regulation lobby, complaining without fatalities it's harder to make the case for new regulation, if you think i'm exaggerating listen to the quote from william vost of the play safety foundation, if anyone wants to advance safety through regulation it can't be done without further loss of life. obviously this is a miss and i'm flying this weekend, the last thing i want is a hit. >> looking for a silver lining, the house ways and means chairman dave camp says that the republicans will not be raising taxes to close the deficit. it's good to hear him saying this, it puts the obamacare decision at the center of the debate about the proper use of taxes. we do tax reform next year, i hope abolishing the obamacare, map date tax is included. >> paul: remember, if you have your own hit or miss, please send it to us at ger@foxnewsom